1After 1718, defendants convicted of
clergyable offenses were frequently sentenced to transportation and
defendants convicted of non-clergyable offenses were often sentenced
to hang and then pardoned on condition of transportation.
Imprisonment did not become an important part of the system until the
end of the century.

2The procedure I am describing here
was an ordinary criminal prosecution commenced and controlled by a
private party acting on behalf of the crown; the case would be Rex v
X. There was also a procedure, still existing but little used, under
which certain private parties could initiate private suits, called
appeals, to impose criminal penalties. According to Blackstone, "As
this method of prosecution is still in force, I cannot omit to
mention it: but as it is very little in use ... . An appeal of
felony may be brought for crimes committed either against the
parties themselves or their relations. ... If the appellee be found
guilty he shall suffer the same judgment as if he had been convicted
by inditment: but with this remarkable difference; that on an
indictment, which is at the suit of the king, the king may pardon and
remit the execution; on an appeal, which is at the suit of a private
subject ... the king can no more pardon it than he can remit the
damages recovered in an action of battery." 4 Blackstone *312-316.

3The statute was vague about exactly
who got the rewards; the prosecutor often shared them with witnesses
and informers. Ruth Paley, "Thief-takers in London in the Age of the
McDaniel Gang, c. 1745-1754," in Hay and Snyder (1989) pp. 316-322.

4In one case of entrapment, the
prosecutors, who had set up the offense, stood to gain rewards that
totalled [[sterling]] 120. Ruth Paley, "Thief-takers in London in the
Age of the McDaniel Gang, c. 1745-1754," in Hay and Snyder (1989) p.
302.

5Contemporary writers seem to have
taken it for granted that entrapment was a bad thing. They appear not
to have considered the possibility that, even if a particular act of
entrapment created a crime that would otherwise not have occured, the
net effect might be to reduce crime by making criminals less willing
to trust potential confederates.

6This change did not entirely
eliminate the problem. In the nineteenth century, there were charges
that police sometimes conspired with attorneys to convict defendants.
The attorneys would be reimbursed by the court for their services,
and would then kick back some of the money to the police. Such a
scheme depended on the court being willing to pay more in expenses
than the real cost to the attorney of the services provided.

7As suggested by the previous note,
the introduction of paid police did not eliminate the problems that
had been associated with amateur thief takers. Paid police, one of
them a Bow Street Runner, were involved in an entrapment scandal in
1816, and several Bow Street runners seem to have accumulated
substantial fortunes, presumably from some combination of rewards and
payments for compounding (Radzinowics Volume II, pp. 268, 333-337).
Juries distrusted police testimony in the early 19th century for the
same reason they had distrusted private prosecutors and their
witnesses in the mid-18th century-the suspicion that it was given in
the hope of receiving a reward for conviction. (Radzinowicz II, pp.
344-346.) Similar problems of entrapment and official perjury are not
unknown today, even though police rewards take more indirect forms.

8Under some circumstances, these
punishments became more than minor; a sufficiently unpopular convict
might be attacked in the pillory, sometimes even killed. Beattie
466-468.

9In 1576 "the requirement that the
clergied offender be turned over to the ordinary to undergo purgation
was abolished. Henceforth, the successful pleading of clergy was to
be followed by immediate discharge." (Beattie p. 142) The church
courts still played a role in "wills and marriages and occasional
cases of slander." Douglas Hay, "Property, Authority and the Criminal
Law," p. 30 in Albion's Fatal Tree.

10Elizabethan law had "authorized
judges to imprison clergied offenders for up to a year. That appears
rarely to have been implemented, however." Beattie 492.

11A defendant might spend as much as
six months in jail waiting to be tried. The jails were both
unpleasant and unhealthy; see Beattie pp. 298-309. "Indeed 1750 saw
the most memorable outbreak (of jail fever) of the century because it
carried away not only dozens of prisoners but, following the April
session at the Old Bailey, more than fifty people who had been in
court, among them the Lord Mayor of London, two judges, an alderman,
a lawyer, a number of court officials, and several members of the
jury." (p. 304)

12From 1718 on, many felons who pled
clergy (but not those guilty of manslaughter: Beattie p. 88) were
transported for 7 years. An earlier attempt to replace clergyable
discharge with transportation in 1663 failed. Beatie p. 471.

13By the end of the sixteenth
century, clergy had been removed from, among other offenses, petty
treason (killing one's "lord, master or sovereign immediate"),
murder, housebreaking (when there was someone in the house who was
"put in fear"), highway robbery, horse stealing, theft from churches,
pocket-picking and burglary. Most forms of larceny remained
clergyable. (Beattie p. 144)

14Taking goods from a house when the
owner was present and put in fear, and breaking into houses, shops,
and warehouses and stealing to the value of five shillings (1691);
shoplifting to the value of five shillings and thefts to the same
value from stables and warehouses (1699); theft from a house or
outhouse to the value of forty shillings, even without breaking in
and even if no one was present (1713), sheep stealing (1741), cattle
theft (1742), theft from a bleaching ground of linen or cotton cloth
worth ten shillings or more (1731, 1745), theft from a ship in a
navigable river or from a wharf goods valued at forty shillings or
more (1751), theft from the mails (1765). (Beattie pp. 144-145).

15Examples cited by Beattie (p. 424)
include " theft of twenty-three guineas from a house ...; lace valued
at more than a hundred pounds in the indictment ...; gold rings and
jewelry ... valued by the owners at more than three hundred pounds
... ." All of these were "found by the jury to be thirty-nine
shillings' worth."

16The figures quoted here are based
on the assize files of the Home Circuit and the quarter sessions
rolls of Surrey, and limited to those years from 1660 to 1800, a
total of about a hundred, for which complete indictment evidence was
available. The sample is described in detail by Beattie in his
Appendix, pp. 639-643.

17Beattie (1986) p. 480

18Beattie suggests that
transportation had begun to go out of favor a few years before the
revolution. His explanation is that it was no longer believed to
provide either adequate punishment or adequate incapacitation.
Trans-atlantic voyages became substantially safer and less expensive
during the fifty years after 1720. A transportee could escape from
his indenture or (if he had money) avoid it by paying off the captain
who transported him, and return to England illegally.

19I am not considering here the use
of workhouses and other forms of confinement for those not guilty of
serious offenses, such as vagrants.

20The rate of homicides known to
police in England from 1906-1910 was 0.8 per 100,000. Ted Robert
Gurr, "Historical Trends in Violent Crimes: A Critical Review of the
Evidence," in Crime and Justice: An Annual Review of Research
v. 3, Michael Tonry and Norval Morris eds. Homicide indictment
rates reported by Beattie fell from 8.1 per 100,000 (1660-1679) to
0.9 (1780-1802) in the urban parishes of Surrey, from 4.3 to 0.9 in
the rural parishes of Surrey, and from 2.6 to 0.6 in (rural) Sussex.

21Beattie pp. 108-109. An
interesting project, which so far as I know has not been done, would
be to examine statistics for homicide indictments during the period
just before and during the introduction of professional police, in an
attempt to determine whether there was a significant change in the
ratio of indictments to homicides.

22Philips cites the case of Mr.
James Bailey, a member of an association for the prosecution of
felons, who succeeded in recovering his stolen horse and prosecuting
the thief. His total outlay on the case came to [[sterling]]
66.9s.7d. Philips p. 115. A horse was "worth from [[sterling]] 10 to
[[sterling]] 50." Philips p. 116.

23Of the [[sterling]] 66.9s.7d laid
out by James Bailey, [[sterling]] 38.8s.6d were repaid by the court.

24My description here is based on
David Philips, "Associations for Prosecution of Felons" and P.F. R.
King, "Prosecution Associations and their Impact in
Eighteenth-Century Essex" in Policing and Prosecution in Britain:
1750-1859, Douglas Hay and Francis Snyder, Eds. and ignores
considerable variation in the actual institutions. A few covered more
than a local area. Some charged different amounts to members of
different status.

25David Philips, "Associations for
Prosecution of Felons" in Policing and Prosecution in Britain:
1750-1859, Douglas Hay and Francis Snyder, Eds. offers estimates
of the number of such associations ranging as high as 4000
associations around 1839, and thinks "at least 1000" a good working
figure.

26A related reason for not joining
would be the imperfect privatisation of deterrence. The less
prominent a potential victim was, the less likely it was that a
potential thief would know enough about his commitments to be
deterred by them. And private deterrence would be useless against
crimes, such as most highway robberies, committed by criminals who
did not know who their victims were.

27Ryder Shorthand documents, p. 33 :
R. v. Ann White:

"She came again on Monday when she came and asked for her gown,
and she would have it where she found it, but I would not unless she
would prosecute the prisoner." (testimony of Francis Smith,
pawnbroker)

"On a conviction of larceny, in particular, the prosecutor shall
have restitution of his goods, by virtue of the statute 21 Hen. VIII,
c. 11." 4 Blackstone *362.

28Beattie (p. 457) argues that fines
for minor offenses were largely token payments to show that the two
parties had reached agreement. "A larger fine might well result when
such agreement was not forthcoming, and its threat, along with the
further threat that the nonpayment of a large fine could result in a
period in jail, was clearly used by the courts as a way of persuading
a recalcitrant prisoner to come to terms with the complainant."
Beattie cites the Recorder of London in 1729, ... "In discussing an
assault and battery, he said that it was `usual in these cases for
the Defendant to make satisfaction to the Prosecutor for his wounds,
and costs and charges -before the Court sets the fine ... which is
usually greater if a Defendant won't make a Prosecutor easy as the
Court directs." ... `...and then if he forbears to appear and
prosecute [the defendant] will be discharged, and all charges of a
Tryal saved, which would be a greate expence.'" (Beattie, pp.
457-458)

"It is not uncommon, when a person is convicted of a misdemeanor,
which principally and more immediately affects some individual, as a
battery ... , for the court to permit the defendant to speak with
the prosecutor, before any judgement is pronounced; and if the
prosecutor declares himself satisfied, to inflict but a trivial
punishment. This is done to re-imburse the prosecutor his expenses,
and make him some private amends, without the trouble and circuity of
a civil action. But it surely is a dangerous practice ...
prosecutions for assaults are by these means too frequently commenced
rather for private lucre than for the great ends of public justice."
4 Blackstone *363.

30"Public Prosecutions In England,
1854-79: An Essay in English Legislative History" by Philip B.
Kurland and D.W.M. Waters, Duke Law Journal, 1959 number 4, p.
512.

31The following are a few examples I
have come across:

"Ainsworth was caught stealing, begged Blundell repeatedly not to
prosecute, and entered into negotiations to work on one of his
master's houses in return for forgiveness." Albion's Fatal
Tree, p. 41.

"Mrs. Woodb. asked Ann Wh. to pay the money and she said she would
provided there would be no more trouble afterwards." Ryder Old Bailey
Notes, p. 34, R. v. Ann White. This was from the testimony of
Francis Smith, pawnbroker. Mrs. Woodburn was the owner of the stolen
gown; Ann White was the mother of the accused thief, also named Ann
White. The money was being paid to Smith in order to redeem the gown,
in order that it could be returned to its owner. The elder Ann White
paid the money, but her daughter was nonetheless charged and
convicted.

Jo. Watkins, father of prisoner. "The prosecutor has been with me,
and wanted money to stop the proceedings, he having been at great
expense. But I refused. ... He said, would I give nothing to save my
child?" Ryder Old Bailey Notes, p. 53. The girl, who was accused of
having stolen and pawned a laced waistcoat, was acquitted, apparently
because too young (11) to have sufficient discretion to be held
guilty of a felony.

32Peter King, "Decision-makers and
Decision-making in the English Criminal Law, 1750-1800," 27 The
Historical Journal 25-58 (1984). Beattie asserts that "the vast
majority of those committed by magistrates to stand trial for
felonies were charged and brought to court, ..." but does not provide
any actual numbers. (Beattie p. 401)

33Of course, a criminal system could
also offer the defendant the choice between hanging and paying a
fine. As we will see in Part VI below, such a transaction may have
been implicit in the pardoning system, although the payment took a
non-pecuniary form. But the court might be less competent at finding
the right fine-the highest that the criminal (and, possibly, his
friends and family) were prepared to pay-than a private prosecutor
pursuing his private interest.

34This may or may not be true if the
prosecutor's principle objective is deterrence. Using perjury to
convict a defendant who potential offenders believe is innocent does
not deter. Using perjury to convict a party who potential offenders
believe is guilty does.

35The problem was also recognized by
the law in the related context of informers who were entitled to a
part of the fine paid by those they informed against. "When suing for
a penalty, an informer was considered an incompetent witness unless
made competent by statute." Radzinowicz, Volume II p. 139.

37This argument is made repeatedly
in Albion's fatal tree, in particular in "Property, Authority
and the Criminal Law" by Douglas Hay. It is persuasively rebutted by
John Langbein in "Albion's Fatal Flaw," 98 Past & Present
96-120 (1983). For a re-rebutal, see Linebaugh, Peter. "(Marxist)
Social History and (Conservative) Legal History: A Reply to Professor
Langbein." New York University Law Review 60 (1985): 212-43.

38See Douglas Hay, "Prosecution and
Power: Malicious Prosecution in the English Courts, 1750-1850" in
Policing and Prosecution in Britain: 1750-1859, Douglas Hay
and Francis Snyder, Eds.

39The same phenomenon in modern
civil law is described as searching for potential defendants with
deep pockets.

40Conspiracies between poachers and
informers were alleged to have occurred in the enforcement of the
game laws. "If a friend laid an information before the keepers could,
it prevented their prosecuting, for the informer had rights in the
fine. Five pounds sterling went from the poacher to the JP, then to
the friend (as informer) and back again to the poacher over a pint in
the alehouse." Douglas Hay, "Poaching and the Game Laws on Cannock
Chase," p. 198 in Albion's Fatal Tree. Hay asserts that this
was a common trick, citing Some Considerations on the Game Laws,
and the Present Practice in executing them; with a hint to the
non-subscribers, 1753 , p. 26. I know of no similar example in
the context of more serious offenses.

41According toBlackstone, 2
Comm. *437, where a statute provides a penalty payable to the
informer, the first person who brings an action "obtains an inchoate
imperfect degree of property by commencing his suit: but it is not
consummated till judgement; for, if any collusion appears, he loses
the priority he had gained."

42A defendant could defend himself
against prosecution by a plea of autrefoits acquit or
autrefoits convict--having been either acquitted or convicted
in one trial, he could not be tried again (4 Blackstone *335-336). It
is not clear whether any similar defense existed for a defendant who
had been charged but not tried, due to the failure of the prosecutor
to show up at the trial. The equivalent situation in a civil case
resulted in a non prosiquiter being entered; the plaintiff
owed costs to the defendant and a fine to the crown, but could
reinstitute his suit after paying them (3 Blackstone * 296).

43Check if this is right.***

44Blackstone, 2 Comm. *437.

45For more detailed discussions of
punishment inefficiency and its relevance to the choice of
punishment, see D. Friedman, "Reflections on Optimal Punishment or
Should the Rich Pay Higher Fines?," Research in Law and
Economics, (1981); "Should the Characteristics of Victims and
Criminals Count? Payne v Tennessee and Two Views of Efficient
Punishment," XXXIV Boston College Law Review No.4, pp.731-769 (July
1993).

46The inefficiency is slightly
greater than one if we include the cost of hiring the executioner. It
might be less than one if the state obtained some direct benefit from
execution.

47"Duncan Campbell was paid about
thirty-eight pounds a year for each prisoner on board his ships. The
government got the benefit of their labor, but it came nowhere near
that figure in value. Beattie (1986) p. 593, citing Johnson,
English Prison Hulks, p.9.

48My description of the galley slave
system is based on Law, Magistracy and Crime in Old Regime Paris,
1735-1789, by Richard Mowery Andrews

49Andrews p. 326. He does not offer
either the evidence for that conclusion, nor any numbers that could
be used to compare the gains with the associated costs.

51Langbein asserts in a footnote
that "the use of captives in the galleys had been known in antiquity,
and may have been a more or less continuous process in the Eastern
Mediterranean into the Renaissance," and cites Paul Masson, Les
galè res de France, 20 Annales de la Faculté des
lettres d'Aix 7, 72 ff note 24 at 8-10. According to Casson (pp.
322-328) this is mistaken. In a careful and convincing discussion, he
argues that, in classical antiquity, neither slaves nor convicts were
used to row warships save in rare emergencies.

One obvious conjecture is that the use of slave rowed galleys for
military purposes was associated with the increasing use of cannon in
naval warfare. As long as the usual form of combat involved a
substantial element of boarding and hand-to-hand combat, as seems to
have been the case both for classical naval engagements and during
the viking period, a ship whose rowers could not be trusted with
weapons was at a serious disadvantage.

52Similar considerations appear in
the literature on plantation slavery in the new world; there too it
has been argued that particular activities were well suited to
slavery because they involved groups of workers working together at
tasks that were easily standardised and supervised (the "gang
system"). Robert Foley, Without Consent or Contract, pp.
21-45, 72-80.

53Beattie suggests that the reason
for the change in policy was that the financial situation of the
English government had improved considerably by 1718. (p. 504)

54This ignores those transportees
who returned illegally before their sentences were up. It appears
from Beattie (1986), pp. 540-541, that such returnees became a
significant problem during the second half of the century. Seven
years was the usual sentence of transportation (and term of
indenture) for clergyable felonies, fourteen for non-clergyable
felons pardoned on condition of transportation. Presumably many of
the transportees either died before completing their terms or chose
to remain in the new world.

56For a detailed analysis of the
arguments that judges offered for and against pardons, and the source
of character testimony in favor of pardons, see Peter King,
"Decision-makers and Decision-making in the English Criminal Law,
1750-1800," 27 The Historical Journal 25-58 (1984).

57For a more detailed discussion of
price discrimination in punishment, see David Friedman, "Reflections
on Optimal Punishment or Should the Rich Pay Higher Fines?,"
Research in Law and Economics, (1981).

58Of course, the friends may expect
to be repaid by the felon in future favors.

Boswell's memoirs contain a detailed first hand description of his
unsuccessful attempt to get a death sentence converted to
transportation. Boswell was a lawyer in the
Scottish legal system in the eighteenth century. The convicted
defendant had been his first criminal client. Boswell got him off that
time but failed to prevent his conviction in another case years later.
The account is broadly
consistent with the somewhat conjectural interpretation I have offered;
it is clear that Boswell is using his influence with various people who
have no direct connection to the case in order to get them to use their
influence in his client's behalf. See
Boswell for the Defense: 1769-1774, edited by William K. Wimsatt
Jr. and Frederick A. Pottle, pp. 276-338. [Note
added to webbed paper after publication]

59Richard Posner, The Economics
of Justice 193-195.

60 This point is made in"Property,
Authority and the Criminal Law" by Douglas Hay in Albion's Fatal
Tree, pp. 48-49.

61See John Langbein, "The Historical
Origins of the Sanction of Imprisonment for Serious Crime,"
JLS5 (1976) 35-60.

62Throughout this discussion, I am
considering the optimal level of prosecution while holding fixed
other relevant features of the system, such as the schedule of
penalties and the rules of evidence. By the optimal level of
deterrence, I mean the level that is optimal given the rest of the
system as it was; I am not suggesting that even the best system of
private deterrence would make the entire system optimal.

63It is not important at this point
in the analysis whether we think of the supply as a number of people,
and assume they are all full time thieves, or whether we think of
supply in terms of man hours of theft per year, some or all of which
may be provided on a part time basis.

64David Philips, "Associations for
Prosecution of Felons" in Policing and Prosecution in Britain:
1750-1859, Douglas Hay and Francis Snyder, Eds.

66Alternatively, casing a joint
takes a fixed length of time, and the criminal has a conventionally
declining marginal utility for leisure.

67I refer to D(R) as a demand curve
because it plays the same role in determining the equilibrium level
of casing that an ordinary demand curve plays in determing the
equilibrium level of output. It differs from an ordinary demand curve
in other respects. Since the transaction between thief and victim is
not a voluntary one, the amount to be stolen does not measure the
value produced by theft; the demand curve is not derived from a
marginal value curve, and the area under it is not consumer surplus.

68I have not given a complete verbal
account of the assumptions underlying the model. In particular, I
have assumed without comment that the cost of casing one joint does
not depend on the availability of other, nearby, joints to be cased.
That is a plausible assumption if we imagine that the cost of going
to and from the target is a negligible part of the cost of casing it,
either because looking for opportunities is costly, or because
targets are dense enough so that it is only a short distance from one
to another. If I drop that assumption, an owner who makes his target
less attractive confers an external benefit on other owners, by
raising the cost to criminals of casing their targets.